S.30 – an act relating to siting of electric generation plants

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NOTICE CALENDAR
Second Reading
Favorable with Recommendation of Amendment
S. 30.
An act relating to siting of electric generation plants.
Reported favorably with recommendation of amendment by Senator
Snelling for the Committee on Natural Resources and Energy.
The Committee recommends that the bill be amended by striking out all
after the enacting clause and inserting in lieu thereof the following:
* * * Findings * * *
Sec. 1. FINDINGS
The General Assembly finds that:
(1) Climate change from the emission of greenhouse gases such as
carbon dioxide (CO
2
) is one of the most serious issues facing Vermont today.
In this State, the change in climate already has resulted in significant damage
from increased heavy rain events and flooding and in fundamental alterations
to average annual temperatures and the length and characteristics of the
seasons. As climate change accelerates, the hazards to human health and
safety and the environment in Vermont will rise, including an increased
frequency of violent storm events, heat waves, and one- to two-month
droughts; threats to the productivity of cold-weather crops and dairy cows and
to cold-water fish and wildlife species; reduced seasons for skiing,
snowmobiling, and sugaring; and increasing risks to infrastructure such as
roads and bridges near streams and rivers.
(2) Vermont currently encourages the in-state siting of renewable
electric generation projects in order to contribute to reductions in global
climate change caused by greenhouse gas emissions. Yet significant
controversy exists over whether in-state development of renewable energy
actually reduces Vermont’s greenhouse gas emissions, since these projects
typically sell renewable energy credits to utilities in other states, and those
credits are netted against the greenhouse gas emissions of those states.
(3) Vermont’s electric energy consumption does not contribute
significantly to the State’s carbon footprint. In 2010, CO
2
and equivalent
emissions from Vermont energy consumption totaled approximately eight
million metric tons (MMTCO
2
). Of this total, transportation fuel use
accounted for approximately 3.5, nonelectric fuel use by homes and businesses
for approximately 2.5 and, in contrast, electric energy use for approximately
0.04 MMTCO
2
.
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(4) The in-state siting of renewable electric generation projects carries
the potential for significant adverse impacts. For example, in Vermont,
developers site industrial wind generation projects and wind meteorological
stations on ridgelines, which often contain sensitive habitat and important
natural areas. Vermont’s ridgelines also define and enhance the State’s natural
and scenic beauty. Vermont has invested substantial time and effort to develop
regulatory policy and programs to protect its ridgelines.
(5) Ridgeline wind generation plants have potential impacts on natural
resources, scenic beauty, and quality of life, including effects on endangered
and threatened species, wildlife habitat, and aesthetics and impacts from
blasting and turbine noise. Residents near installed wind generation plants
have raised concerns about health impacts, including sleep loss. Significant
controversy has arisen over whether the Public Service Board review process
adequately protects the public and the environment from the negative impacts
caused by these and other electric generation projects.
(6) Vermont has a long history of supporting community-based land use
planning. Under 24 V.S.A. chapter 117, Vermont’s 11 regional planning
commissions and its municipal planning commissions are enabled and
encouraged to adopt plans to guide development, including energy and utility
facilities. These plans are adopted through a public hearing and comment
process after substantial effort by the regions and the municipalities, often with
extensive involvement of citizens in the affected communities. Yet under
current law, the Public Service Board when reviewing an electric generation
project may set aside the results of this planning process for any reason the
Board considers to affect the general good of the State, even if the project is
not needed for reliability of the electric system.
(7) No statewide analysis and planning is performed to address the
environmental, land use, and health impacts of siting wind generation projects
in Vermont. Instead, the Public Service Board examines the impacts on a
case-by-case basis only.
(8) The current case-by-case system of regulating electric generation
projects must be revised to ensure the best possible siting of these projects. To
achieve this goal, the siting of electric generation projects must be directed by
community-based land use planning. Each electric generation project must
comply with the same environmental and land use criteria as other
development projects unless the generation project is for the purpose of system
reliability. A statewide assessment must be made and a process must be
developed that integrates and strengthens the role of community-based land
use planning and supports effective review and optimal siting of all electric
generation projects. This assessment also must evaluate whether encouraging
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in-state siting of renewable electric generation is the most appropriate means at
Vermont’s disposal to reduce its carbon footprint.
* * * Assessment; Report * * *
Sec. 2. ELECTRIC GENERATION SITING; ASSESSMENT; REPORT
(a) Charge. On or before November 15, 2013, the Department of Public
Service, in consultation with and assisted by the Agencies of Commerce and
Community Development and of Natural Resources, the Natural Resources
Board, and the state’s regional planning commissions, shall conduct and
complete the assessment and submit the report to the General Assembly
required by this section.
(b) Definitions. In this section:
(1) “ACCD” means the Agency of Commerce and Community
Development.
(2) “ANR” means the Agency of Natural Resources.
(3) “Board” means the Natural Resources Board.
(4) “Department” means the Department of Public Service.
(5) “Electric generation plant” means a plant that produces electricity
and has a plant capacity that exceeds 500 kilowatts.
(6) “Plant” and “plant capacity” shall have the same meaning as in
30 V.S.A. § 8002, except that they shall not be limited to renewable energy.
(7) “Regional planning commission” shall have the meaning as in
24 V.S.A. § 4303.
(8) “Wind generation plant” means an electric generation plant that
captures the energy of the wind and converts it into electricity. The term
includes all associated facilities and infrastructure such as wind turbines,
towers, guy wires, power lines, roads, and substations.
(9) “Wind meteorological station” means any tower, and associated guy
wires and attached instrumentation, constructed to collect and record wind
speed, wind direction, and atmospheric conditions.
(c) Governor’s Siting Policy Commission. In performing its tasks under
this section, the Department shall use the information and data collected by the
Governor’s Energy Siting Policy Commission (the Siting Policy Commission)
created by Executive Order No. 10-12 dated October 2, 2012 (the Executive
Order) and shall consider the recommendations of that Commission.
(d) Assessment. The Department, assisted by ACCD, ANR, the Board, and
the regional planning commissions, shall assess each of the following:
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(1) the appropriateness and economic efficiency of investing or
encouraging investment in renewable electric generation plants to reduce
Vermont’s greenhouse gas emissions in comparison to other measures to
reduce those emissions such as transportation fuel efficiency and thermal
energy efficiency;
(2) the current policy and practice of selling renewable energy credits
from renewable electric generation plants in Vermont to utilities in other
jurisdictions and the effect of this policy and practice on reducing Vermont’s
greenhouse gas emissions;
(3) methods to integrate state energy planning and local and regional
land use planning as they apply to electric generation plants;
(4) methods to strengthen the role of local and regional plans in the
siting review process for electric generation plants and to assure that the siting
review process reflects the outcome of the local and regional planning
processes;
(5) methods to fund intervenors in the siting review process for electric
generation projects; and
(6) with respect to wind generation plants and wind meteorological
stations:
(A) health impacts of plants and stations located in and outside
Vermont;
(B) sound and infrasound emitted from plants and stations located in
and outside Vermont as they affect public health and quality of life;
(C) setback requirements on such plants and stations adopted by
other jurisdictions in and outside the United States;
(D) the impacts on the environment, natural resources, and quality of
life of the plants and stations in Vermont in existence or under construction as
of the effective date of this section; and
(E) the economic and environmental costs and benefits of such plants
and stations, including the value of any ecosystem services affected by them.
(e) Report; proposed legislation. On or before November 15, 2013, the
Department, assisted by ACCD, ANR, the Board, and the regional planning
commissions, shall submit a report to the House and Senate Committees on
Natural Resources and Energy and the Electric Generation Oversight
Committee created under subsection (g) of this section that contains each of
the following:
(1) The results of each assessment to be conducted under subsection (d)
of this section.
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(2) Recommendations and proposed legislation to:
(A) establish a comprehensive planning process for the siting of
electric generation plants that integrates state energy and local and regional
land use planning;
(B) ensure that the outcome of this integrated planning process
directs the siting review process for electric generation plants and that local
and regional land use plans have a determinative role in this siting review
process;
(C) establish a method to fund intervenors participating in the siting
review process for electric generation plants;
(D) maximize the reductions in Vermont’s greenhouse gas emissions
supported by revenues raised from Vermont taxpayers and ratepayers;
(E) establish standards applicable to all wind generation plants and
wind meteorological stations to address their impacts on the public health,
environment, land use, and quality of life, including standards to protect
natural areas and wildlife habitat and to establish noise limits and setback
requirements applicable to such plants and stations; and
(F) establish a procedure to measure a property owner’s loss of value,
if any, due to proximity to a wind generation plant and to propose a method to
compensate the property owner for the loss in value, including a determination
of who shall pay for such loss.
(f) Public notice and participation.
(1) The Department shall give widespread public notice of the
assessment and report required by this section and shall maintain on its website
a prominent page concerning this process that provides notice of all public
meetings held and posts relevant information and documents.
(2) In performing the assessment and developing the report required by
this section, the Department shall provide an opportunity for local legislative
bodies, local planning commissions, affected businesses and organizations, and
members of the public to submit relevant factual information, analysis, and
comment. This opportunity shall include meetings conducted by the DPS at
locations that are geographically distributed around the State to receive such
information, analysis, and comment.
(g) Oversight committee. There is created the Electric Generation
Oversight Committee (the Committee). The purpose of the Committee shall be
to perform legislative oversight of the conduct of the assessment and report
required by this section and to discuss potential legislation on planning for and
siting of electric generation plants.
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(1) Membership. The Committee shall be composed of six members
who shall be appointed within 30 days of this section’s effective date. Three of
the members shall be members of the Senate Committee on Natural Resources
and Energy appointed by the Committee on Committees of the Senate. Three
of the members shall be members of the House Committee on Natural
Resources and Energy appointed by the Speaker of the House.
(2) Meetings. During adjournment of the General Assembly, the
Committee shall be authorized to conduct up to three meetings. at which
meetings the Committee may:
(A) direct the Department, ACCD, ANR, the Board, and one or more
regional planning commissions to appear and provide progress reports on the
assessment and report required by this section and discuss proposals of draft
legislation on planning for and siting of electric generation plants; and
(B) direct members of the Siting Policy Commission to appear and
provide information and testimony related to the Commission’s report and
recommendations issued pursuant to the Executive Order and to the siting of
electric generation plants in Vermont. This authority shall continue for the
duration of the Committee’s term whether or not the Siting Policy Commission
ceases to exist prior to the end of the Committee’s term.
(3) Reimbursement. For attendance at authorized meetings during
adjournment of the General Assembly, members of the Committee shall be
entitled to compensation and reimbursement for expenses as provided in 2
V.S.A. § 406.
(4) For the purpose of its tasks under this subsection, the Committee
shall have the administrative and legal assistance of the Office of Legislative
Council.
(5) Term of committee. The Committee shall cease to exist on February
1, 2014.
Sec. 3. APPROPRIATION
For fiscal year 2014, the sum of $75,000.00 is appropriated to the
Department of Public Service from the General Fund for the purpose of Sec. 2
of this act (electric generation siting; assessment; report).
* * * Regional Planning for Electric Generation Plants * * *
Sec. 4. 24 V.S.A. § 4348a is amended to read:
§ 4348a. ELEMENTS OF A REGIONAL PLAN
(a) A regional plan shall be consistent with the goals established in section
4302 of this title and shall include but need not be limited to the following:
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* * *
(3) An energy element, which:
(A) may include an analysis of energy resources, needs, scarcities,
costs, and problems within the region, a statement of policy on the
conservation of energy and the development of renewable energy resources,
and a statement of policy on patterns and densities of land use and control
devices likely to result in conservation of energy; and
(B) shall include the electric energy siting plan under section 4348c
of this title;
* * *
Sec. 5. 24 V.S.A. § 4348c is added to read:
§ 4348c. ELECTRIC ENERGY SITING PLAN
(a) In this section:
(1) “Electric generation plant” means a plant that produces electricity
and has a plant capacity that exceeds 500 kilowatts.
(2) “Plant” and “plant capacity” shall have the same meaning as in
30 V.S.A. § 8002, except that they shall not be limited to renewable energy.
(b) Each regional planning commission shall adopt a plan concerning the
siting of electric generation plants within the region. This plan shall be
adopted as part of or an amendment to the regional plan.
(c) The plan shall state the region’s specific policies on the siting of electric
generation plants and identify the appropriate locations within the region, if
any, for the siting of electric generation plants.
(d) In developing the siting plan, the regional planning commission shall
apply the resource maps developed by the Secretary of Natural Resources
under 10 V.S.A. § 127, protect the resources under 10 V.S.A. § 6086(a), and
consider the energy policy set forth in 30 V.S.A. §§ 202a and 8001 and the
state energy plans adopted under 30 V.S.A. §§ 202 and 202b.
(e) Notwithstanding section 4350 of this title, the plan for a municipality
shall not be considered incompatible with the regional plan for the reason that
the municipal plan prohibits the siting of an electric generation plant that the
regional plan would allow within the municipality.
Sec. 6. IMPLEMENTATION
On or before December 15, 2014, each regional planning commission shall
adopt a renewable electric energy siting plan under Sec. 5 of this act, 24 V.S.A.
§ 4348c.
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* * * Municipal Officers; Ethics Disclosure * * *
Sec. 7. 24 V.S.A. § 873 is added to read:
§ 873. DISCLOSURE; FINANCIAL INTEREST; WIND GENERATION
PLANTS
A member of a municipality’s legislative body or other municipal officer
shall not participate in any meeting or proceeding or take any official action
concerning a wind generation plant proposed to be located within the
municipality the member or officer may have in the construction or operation
of the plant, including the retention of the member or officer by the plant
developer an agreement under which the plant developer will compensate the
member or officer for potential impacts to land of the member or officer.
(1) In this section, a financial interest of a member or officer shall
include a financial interest in the construction or operation of the plant of any
natural person to which the member or officer is related within the fourth
degree of consanguinity or affinity or of any corporation of which an officer,
director, trustee, or agent is related to the member or officer within such
degree.
(2) This section shall not require disclosure of a financial interest shared
generally by the residents of the municipality such as the municipality’s receipt
of property taxes or other payments from the plant.
Sec. 8. 24 V.S.A. § 4461 is amended to read:
§ 4461. DEVELOPMENT REVIEW PROCEDURES
(a) Meetings; rules of procedure and ethics. An appropriate municipal
panel shall elect its own officers and adopt rules of procedure, subject to this
section and other applicable state statutes, and shall adopt rules of ethics with
respect to conflicts of interest.
(1) Meetings of any appropriate municipal panel shall be held at the call
of the chairperson and at such times as the panel may determine. The officers
of the panel may administer oaths and compel the attendance of witnesses and
the production of material germane to any issue under review. All meetings of
the panel, except for deliberative and executive sessions, shall be open to the
public. The panel shall keep minutes of its proceedings, showing the vote of
each member upon each question, or, if absent or failing to vote, indicating
this, and shall keep records of its examinations and other official actions, all of
which shall be filed immediately in the office of the clerk of the municipality
as a public record. For the conduct of any hearing and the taking of any action,
a quorum shall be not less than a majority of the members of the panel, and any
action of the panel shall be taken by the concurrence of a majority of the panel.
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(2) The provisions of section 873 of this title (disclosure; financial
interest; wind generation plant) shall apply to each member of an appropriate
municipal panel.
* * *
* * * Electric Generation Siting Jurisdiction; Public Service Board * * *
Sec. 9. 30 V.S.A. § 248 is amended to read:
§ 248. NEW GAS AND ELECTRIC PURCHASES, INVESTMENTS, AND
FACILITIES; CERTIFICATE OF PUBLIC GOOD
(a)(1) No company, as defined in section 201 of this title, may:
(A) In any way purchase electric capacity or energy from outside
the state State:
(i) for a period exceeding five years, that represents more than
three percent of its historic peak demand, unless the purchase is from a plant as
defined in subdivision 8002(14) of this title that produces electricity from
renewable energy as defined under subdivision 8002(17); or
(ii) for a period exceeding ten years, that represents more than ten
percent of its historic peak demand, if the purchase is from a plant as defined
in subdivision 8002(14) of this title that produces electricity from renewable
energy as defined under subdivision 8002(17); or
(B) invest in an electric generation or transmission facility located
outside this state State unless the public service board Public Service Board
first finds that the same will promote the general good of the state State and
issues a certificate to that effect.
(2) Except for the replacement of existing facilities with equivalent
facilities in the usual course of business, and except for electric generation
facilities that are operated solely for on-site electricity consumption by the
owner of those facilities:
(A) no company, as defined in section 201 of this title, and no person,
as defined in 10 V.S.A. § 6001(14), may begin site preparation for or
construction of an electric generation facility or electric transmission facility
within the state State which is designed for immediate or eventual operation at
any voltage; and
(B) no such company may exercise the right of eminent domain in
connection with site preparation for or construction of any such transmission or
generation facility, unless the public service board Public Service Board first
finds that the same will promote the general good of the state State and issues a
certificate to that effect.
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* * *
(b) Before the public service board Public Service Board issues a certificate
of public good as required under subsection (a) of this section, it shall find that
the purchase, investment, or construction:
(1)(A) with respect to an in-state electric generation facility exceeding
500 kilowatts, will be in conformance with the duly adopted plans under 24
V.S.A. chapter 117 for the municipality and region in which the facility is
located, and due consideration has been given to the land conservation
measures contained in the plan of any other affected municipality.
Notwithstanding subsection (a) of this section, the Board shall not issue a
certificate under this section for such an in-state facility without finding that
this subdivision (1)(A) is met. However, this subdivision (1)(A) shall not
apply to an electric generation facility the principal effect of which, if
approved, would be to remediate a constraint in the electric transmission or
distribution system;
(B) with respect to an any other in-state facility subject to this
section, will not unduly interfere with the orderly development of the region
with due consideration having been given to the recommendations of the
municipal and regional planning commissions, the recommendations of the
municipal legislative bodies, and the land conservation measures contained in
the plan of any affected municipality. However, with respect to a natural gas
transmission line subject to board review, the line shall be in conformance with
any applicable provisions concerning such lines contained in the duly adopted
regional plan; and, in addition, upon application of any party, the board Board
shall condition any certificate of public good for a natural gas transmission line
issued under this section so as to prohibit service connections that would not be
in conformance with the adopted municipal plan in any municipality in which
the line is located;
* * *
(5) with respect to an in-state facility, will not have an undue adverse
effect on esthetics, historic sites, air and water purity, the natural environment,
the use of natural resources, and the public health and safety, with and:
(A) with respect to an in-state electric generation facility exceeding
500 kilowatts, will comply with the criteria of 10 V.S.A. § 6086(a)(1)–(9)(L).
Notwithstanding subsection (a) of this section, the Board shall not issue a
certificate under this section for such an in-state facility without finding that
this subdivision (5)(A) is met. However, this subdivision (5)(A) shall not
apply to an electric generation facility the principal effect of which, if
approved, would be to remediate a constraint in the electric transmission or
distribution system;
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(B) with respect to any other in-state facility subject to this section,
due consideration having has been given to the criteria specified in 10 V.S.A.
§§ 1424a(d) and 6086(a)(1) through (8) and (9)(K) and greenhouse gas
impacts.
* * *
(q) When reviewing a facility under this section pursuant to the criteria of
10 V.S.A. § 6086(a), the Public Service Board shall consider the relevant
precedents of the former Environmental Board and of the Environmental
Division of the Superior Court and shall apply the relevant precedents of the
Vermont Supreme Court.
Sec. 10. RETROACTIVE APPLICATION
Notwithstanding 1 V.S.A. §§ 213 and 214, Sec. 9 (new gas and electric
purchases, investments, and facilities; certificate of public good) of this act
shall apply to applications that are filed on and after March 1, 2013 and are
pending as of this section’s effective date.
* * * State Lands * * *
Sec. 11. 10 V.S.A. chapter 88 is added to read:
CHAPTER 88. PROHIBITION; COMMERCIAL CONSTRUCTION;
CERTAIN PUBLIC LANDS
§ 2801. POLICY
Vermont’s state parks, state forests, natural areas, wilderness areas, wildlife
management areas, and wildlife refuges are intended to remain in a natural or
wild state forever and shall be protected and managed accordingly.
§ 2802. PROHIBITION
(a) Construction for any commercial purpose, including the generation of
electric power, shall not be permitted within any state park or forest,
wilderness area designated by law, or natural area designated under section
2607 of this title.
(b) This section shall not prohibit:
(1) the construction of a concession or other structure for the use of
visitors to state parks or forests;
(2) a modification or improvement to a dam in existence as of the
effective date of this section, if the modification or improvement is:
(A) to ensure public safety; or
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(B) to allow the dam’s use for the generation of electricity, and the
construction of any power lines and facilities necessary for such use;
(3) the construction of telecommunications facilities, as defined in
30 V.S.A. § 248a(b) (certificate of public good; communications facilities), in
accordance with all other applicable state law;
(4) a temporary structure or road for forestry purposes as may be
permitted on a state land;
(5) tapping of maple trees and associated activities on state forestland
authorized under a license pursuant to section 2606b of this title; or
(6) construction on state land that is permitted under a lease or license
that was in existence on this act’s effective date and, in the case of a ski area,
the renewal of such a lease or license or its modification to allow expansion of
the ski area.
Sec. 12. REPEAL
10 V.S.A. § 2606(c) (state forests; parks; leases for mining or quarrying) is
repealed.

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